[Federal Register Volume 61, Number 99 (Tuesday, May 21, 1996)]
[Rules and Regulations]
[Pages 25409-25416]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11935]



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DEPARTMENT OF TRANSPORTATION

Office of the Secretary

49 CFR Parts 37 and 38

[Docket No. 49658]
RIN 2105-AC13


Transportation for Individuals With Disabilities

AGENCY: Department of Transportation (DOT), Office of the Secretary.

ACTION: Final rule.

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SUMMARY: The Department is amending several provisions of its rules 
implementing the Americans with Disabilities Act (ADA). Some of the 
changes are being made in response to petitions received by the 
Department. The first change will ensure that the rule treats 
independent private schools similarly to other schools. The second 
change will apply the same gap standard to high speed automated 
guideway transit (AGT) systems as is applied to other rapid and light 
rail systems. The third petition granted in this rule will give local 
jurisdictions more discretion with respect to advance reservation 
systems for paratransit services. However, the Department is 
withdrawing a proposal that would have permitted transit authorities to 
determine that certain bus stops may be designated as non-accessible 
stops.
    This rule will also make six amendments that derive from the 
Department's own proposals. The first will decrease the paperwork 
burden of producing annual paratransit plan updates once the 
paratransit system reaches full compliance with ADA regulations. The 
second will clarify a visitor's eligibility for paratransit services. 
The third will clarify the vehicle acquisition requirements for private 
entities not primarily engaged in the business of transporting people. 
The fourth amendment will remove ``inability to comply'' as a condition 
of gaining a determination of equivalent facilitation. The final two 
amendments will eliminate confusion in a cross reference within the 
regulation and correct a typographical error. The Department has 
concluded that no change is warranted in the regulatory definition of a 
personal care attendant.

EFFECTIVE DATE: This final rule is effective June 20, 1996.

FOR FURTHER INFORMATION CONTACT: Robert C. Ashby, Deputy Assistant 
General Counsel for Regulation and Enforcement, Department of 
Transportation, 400 7th Street, SW., Room 10424, Washington, DC 20590. 
(202) 366-9306 (voice); (202) 755-7687 (TDD); or Richard Wong, Office 
of Chief Counsel, Federal Transit Administration, same street address, 
Room 9316. (202) 366-4011.

SUPPLEMENTARY INFORMATION:

I. Introduction

    The Department published its notice of proposed rulemaking (NPRM) 
on the issues covered by this rule on July 21, 1994. The NPRM included 
proposed amendments that were petitioned for by the public on which the 
Department took no initial position and proposals that the Department 
generated internally. The Department received over 275 comments on the 
NPRM, most of which came from individuals with disabilities, 
organizations representing them and transit authorities. Additional

[[Page 25410]]

comments were received from state disability advocates, engineering 
groups, paratransit providers and equipment manufacturers, as well as 
others.

II. Petitions for Rulemaking

1. Bus Stops

    This issue, raised in the NPRM on the basis of a petition from 
Seattle Metro, was the most controversial in the rulemaking. Disability 
community commenters were virtually unanimous in strongly opposing 
Seattle's suggestion that transit authorities be authorized to declare 
a bus stop ``off limits'' to wheelchair users, or in some cases, to all 
lift users, on the basis that conditions at the stop made its use too 
dangerous for such passengers. These commenters included disability 
advocacy organizations, individuals, the U.S. Department of Justice, 
and state and local government agencies. A few transit agencies also 
shared their point of view.
    The first point these commenters made was that individuals with 
disabilities--not transit agencies--should decide when a given stop is 
appropriate for them to use. Individuals with disabilities know their 
own abilities better than anyone else, and can make reasonable choices 
about what is or is not safe for them. Allowing other parties, such as 
transit agencies, to make these choices smacks of paternalism and is 
the sort of well-intended constraint on the activities of persons with 
disabilities that the ADA is specifically intended to prevent. 
Providing discretion to transit authorities to deny to passengers with 
disabilities the use of facilities that other passengers are allowed to 
use is a clear violation of the ADA's nondiscrimination mandate, many 
commenters said.
    What made the proposal additionally objectionable, many of these 
commenters said, was that there was no empirical evidence that there 
was a significant safety problem at bus stops. There might be 
speculation that a safety problem existed, and worry about potential 
liability, but there were few, if any, facts presented that the problem 
was real. When there is a nondiscrimination mandate like that of the 
ADA, any classification that denies services to the protected class 
must be based on demonstrated facts, they said, not on fear. Many of 
these commenters pointed to the ADA's ``direct threat'' concept as a 
model for determining when it is acceptable to deny services or 
facilities to individuals with disabilities based on a safety risk. 
This concept, they noted, focuses on the individual situation of each 
disabled person, not on the presumed abilities of a class of persons 
with disabilities.
    Finally, a number of these commenters noted that, if individuals 
are denied use of stops, they will become eligible for paratransit, 
which will increase costs to transit authorities. There could also be 
situations in which people would be denied service altogether because 
of limited capacity on paratransit systems, one commenter noted. (Two 
transit authority commenters said, on the other hand, that transit 
authorities' desire to avoid adding to paratransit costs would be a 
deterrent to abuse of discretion to limit passengers' use of unsafe 
stops.)
    Many disability community commenters, and several transit 
authorities as well, opposed the petition's suggestion that the 
standard for determining the suitability of a stop for disabled 
passengers be the new construction standard for bus stops in the 
Americans with Disabilities Act Accessibility Guidelines (AADAG). This 
standard, they said, was of questionable relevance to streetside bus 
stops in mass transit systems, and was inappropriate for use in a 
situation involving existing facilities in any event. The obligation 
that public entities have for existing facilities, they noted, is to 
make them program accessible, not necessarily to bring them up to new 
construction standards. The new construction standard was never 
intended to be a safety standard, or a criterion to determine when an 
individual with disabilities would be allowed to use a facility. The 
petitioner was the only commenter to support the proposal to use the 
new construction standard.
    A large majority of the transit providers that commented supported 
the idea that they should have discretion to declare stops ``off 
limits'' to lift users on the basis of safety. Because some stops had 
hazards that affect passengers with disabilities in ways that other 
passengers are not affected (e.g., stops that have a narrow area for 
maneuvering that present a problem to wheelchair users but not 
ambulatory persons, stops with a drop-off that can result in a 
wheelchair overturning), it is rational to prevent accidents and 
injuries by denying use of these stops to persons for whom the hazards 
are serious. Concern about liability was another reason advanced by 
many transit commenters. Seattle said it had experienced seven 
accidents because of bus stop problems since 1987, including one 
serious injury that resulted in a settlement of over $400,000.
    While the transit community generally supported Seattle's petition, 
there were a number of interesting nuances in transit provider 
comments. Some emphasized the necessity of working with the disability 
community on bus stop access issues, including public hearings or other 
opportunities for public participation. Improving or moving existing 
bus stops was a step mentioned by others. Differences among buses and 
passengers need to be taken into consideration, others said. Prodding 
the Department of Justice to issue regulations requiring local 
governments to work on making bus stops under their control program 
accessible was another suggestion. Better training for drivers on how 
to deploy lifts safely in a variety of situations was also recommended. 
Some commenters also mentioned (but apparently did not favor) the 
possibility of closing stops to all passengers if they were not safely 
usable by passengers with disabilities.
    This is a case in which both sides of the debate have genuine 
concerns. The petitioner and comments supporting its position worry, in 
good faith, about potential safety problems facing wheelchair users at 
some bus stops and about ensuing liability problems that may result for 
transit providers. In the absence of legal constraints on the use of 
classifications based on disability, it could arguably be rational for 
transit providers to take the kind of action that the petition 
proposes.
    However, the ADA imposes strong legal constraints on the use of 
classifications based on disability. Under the ADA, a proposed action 
which treats a disability-based class of persons differently from the 
rest of the public cannot be accepted merely because it may assuage a 
party's good faith concerns about safety. This is a position that the 
Department has taken consistently as it has developed and implemented 
its ADA regulations.
    For example, before and during the development of Part 37, there 
was considerable discussion of transit providers' good-faith safety 
concerns about transporting three-wheeled ``scooters.'' Many commenters 
asserted that these devices were unstable and difficult to secure, and 
asked that transit providers have the discretion to exclude them on the 
basis of these safety-related concerns. The Department required that 
providers carry such mobility devices, noting the absence of 
``information in the record that would support a finding that carrying 
non-traditional wheelchairs would constitute a `direct threat' to the 
safety of others. * * *'' (56 FR 45617; September 6, 1991).
    Subsequently, transit community commenters raised the issue of the 
use

[[Page 25411]]

of lifts by standees, which the original version of Part 37 required. 
The commenters expressed the concern that standees could fall off the 
lifts or hit their heads, resulting in injury to passengers and 
liability for providers. With one exception (concerning a particular 
lift model that was no longer being manufactured), there was little 
information in the record demonstrating that a real safety problem, as 
distinct from speculation or fears concerning potential safety 
problems, existed. The Department rejected the proposal, saying that--

    [t]he ADA is a nondiscrimination statute, intended to ensure * * 
* that people with disabilities have access to transportation 
services. To permit a transportation provider to exclude a category 
of persons with disabilities from * * * access to a vehicle on the 
basis of a perceived safety hazard, absent information in the record 
that the hazard is real, would be inconsistent with the statute. * * 
* While we understand the concerns of transit agency commenters 
about the potential safety risks that may be involved, the 
Department does not have a basis in the rulemaking record for 
authorizing a restriction on lift use by standees. (58 FR 63096; 
November 30, 1993).

    The Department's analysis of the Seattle petition is very similar 
to its response to these two previous issues. The petition presents a 
genuine, good-faith concern that a certain condition (here, terrain or 
other problems at particular bus stops) may create a safety hazard for 
a class of persons with disabilities. There is, in the comments 
favoring the petition, agreement that difficult conditions at some 
stops might, indeed, create some safety risks for wheelchair users or 
other persons with disabilities. But there is little in the record to 
suggest that there is substantial, pervasive, or strong evidence that a 
real, as distinct from speculative, safety problem exists.
    To its credit, the petitioner attempted to show the Department that 
problem stops existed for which the petitioner's proposed remedy was 
needed. The petitioner provided a videotaped demonstration of 
wheelchair users attempting to get on and off buses using lifts at 
several problem stops. After reviewing the tape, the Department 
concluded that it is reasonable to believe that at such stops, 
wheelchair users may well have greater difficulty, and take longer, in 
using bus lifts than at other stops. In some of the situations, there 
could be a higher risk to wheelchair users than at other, more 
``normal,'' stops. The Department does not find this evidence 
sufficient, however, to justify carving out an exception to the 
nondiscrimination mandate of the ADA.
    In thinking about situations in which safety reasons are advanced 
for using disability-based classifications, the Department finds it 
useful to consider the ``direct threat'' provisions that exist in other 
provisions of the ADA. ``Direct threat'' permits exceptions--specific 
to an individual--to be made to ADA nondiscrimination requirements on 
the basis of safety. The Department of Justice (DOJ) rule implementing 
Title III of the ADA in the context of public accommodations defines 
the concept as follows:

    Direct threat means a significant risk to the health or safety 
of others that cannot be eliminated by a modification of policies, 
practices, or procedures, or by the provision of auxiliary aids or 
services. In determining whether an individual poses a direct threat 
to the health or safety of others, a public accommodation must make 
an individualized assessment, based on a reasonable judgment that 
relies on current medical knowledge or on the best available 
objective evidence, to ascertain: the nature, duration, and severity 
of the risk; the probability that the potential injury will actually 
occur; and whether reasonable modifications of policies, practices, 
or procedures will mitigate the risk. (28 CFR 36.208 (b)-(c)).

Very similar regulatory language appears in the Equal Employment 
Opportunity Commission (EEOC) rules implementing Title I of the ADA in 
the context of employment (29 CFR 1630.2(r); see also discussion 56 FR 
35745; July 26, 1991). The Department of Justice regulation 
implementing Title II of the ADA in the context of state and local 
government programs does not include ``direct threat'' language in its 
regulatory text, but the preamble applies the concept to the essential 
eligibility requirements for participating in state and local programs 
(56 FR 35701; July 26, 1991).
    While the DOJ and EEOC language concerning ``direct threat'' does 
not necessarily apply in its entirety to transportation issues, the 
Department believes that it is appropriate, and in keeping with the 
language and intent of the statute, to determine that disability-based 
classifications in transportation having a safety rationale are 
supportable only on the basis of analysis that incorporates the 
essentials of the ``direct threat'' concept in a way consistent with 
the nature of transportation programs. The petition at issue in this 
rulemaking does not, in the Department's view, closely approach what is 
necessary to be adopted under such an analysis.
    As a general matter, the points raised by commenters opposed to the 
proposal, as described above, have been more persuasive to the 
Department than those points made by its proponents. These points add 
to the discussion above as reasons for the Department's decision.
    The Department believes that transit providers which, like Seattle, 
sincerely desire both to provide nondiscriminatory service to 
individuals with disabilities and to maximize bus stop safety have some 
means available to achieve these objectives. For example, a transit 
provider could provide information to lift users about potential 
hazards at certain stops and offer informational on alternative stops 
or routings to such passengers, where alternatives were available. The 
provider could also offer paratransit to those passengers who chose to 
avoid using the stops as a result.
    The transit provider could make operational modifications to 
mitigate potential hazards. For example, if there is limited space or a 
potential hazard at a stop, the bus could let a wheelchair user board 
at a nearby area that was easier to use or stop at a greater distance 
from the curb. We are aware that transit providers are often reluctant 
to depart from normal practices in this regard (although such 
deviations appear commonplace during inclement weather, such as when 
bottomless puddles, ``Blizzard of '96''-size snowbanks, or carnivorous 
potholes make access to normal stops difficult for all passengers). 
Nevertheless, these are among the kinds of ``reasonable modifications 
of policies, practices, or procedures [to] mitigate the risk'' that the 
ADA calls for.
    Transit providers can also urge local governments to improve 
accessibility to bus stops, mitigate hazards at stops, or, if need be, 
move stops to better locations. The Department is aware that transit 
providers often do not control the placement of stops or the land on 
which they are located, though we believe that transit providers should 
continue the effort to work with their local governments on these 
matters.
    For these reasons, the Department is withdrawing the proposal, 
based on the Seattle petition, to permit transit providers to limit the 
use of certain bus stops by lift users. The existing rule's language 
(49 CFR 37.167(g)) will remain in effect, without change. Any transit 
provider that may have instituted limits on the use of particular stops 
by lift users, except as authorized by this provision, must cease 
implementing the limits, as they are explicitly contrary to the 
Department's ADA rule.

[[Page 25412]]

2. Requirements for Private School Transportation

    The Department has decided to grant the petition of the National 
Association of Independent Schools (NAIS) and adopt the proposed 
private school exemption. In doing so, the Department emphasizes the 
importance of ensuring that schools provide disabled students with 
equal access to all of the schools' academic and extracurricular 
programs. Private schools will therefore have to provide equivalent 
transportation services to disabled students in order to be eligible 
for the exemption. The final rule will apply the same standard for 
equivalent service as is found in Sec. 37.105.
    This change is being made because the current requirement that all 
new buses purchased be lift equipped does not apply to most schools. 
Public schools are exempt because their transportation services are 
excluded from the ADA's definition of ``designated public 
transportation.'' Schools with a religious affiliation are exempt based 
on the ADA's exemption for religious organizations. Private elementary 
and secondary schools that receive Federal financial assistance get the 
same exemption as public schools if they provide equivalent 
transportation services to students with disabilities and are covered 
by section 504 of the Rehabilitation Act of 1973. By now, the 
Department's regulation exempts all schools except private, non-
religious schools that receive no Federal financial assistance.
    The NAIS petition pointed out the anomalous result of the 
regulation applying more stringent and costly standards to schools that 
receive no Federal financial assistance than is applied to schools that 
do receive assistance. In response to the NAIS petition, the NPRM 
proposed amending Sec. 37.27 to apply the same equivalent services 
standard to independent schools as is applied to private schools that 
receive Federal assistance. The majority of the comments received on 
this aspect of the proposal supported extending the private school 
exemption. However, many commenters did express concerns about disabled 
students' access to school events. This concern was shared by the few 
commenters who opposed the exemption.
    The Department also shares these concerns. The independent private 
schools will be subject to the same equivalent service standard that 
other private schools must meet, namely that ``when viewed in [their] 
entirety'' transportation services must be ``provided in the most 
integrated setting appropriate to the needs of the individual and is 
equivalent to the service provided other individuals * * *'' 49 C.F.R. 
Sec. 37.105. Any test for equivalence under Sec. 37.105 would go beyond 
providing equal access to transportation to and from school and include 
transportation to and from all of the school's extracurricular 
activities. This approach is consistent with the Department of 
Education's requirement that non-academic and extracurricular 
activities and services be provided in such a way as to ensure disabled 
students an equal opportunity for participation. See 34 C.F.R. 
Sec. 104.37(a)(1). In fact, the Department of Education goes so far as 
to include transportation itself as a covered non-academic service. See 
id. at Sec. 104.37(a)(2).
    One commenter raised the possibility that a school that does not 
purchase lift equipped buses because it has no disabled students might 
exclude disabled applicants in the future to avoid the expense of 
purchasing lifts. This concern could be valid. However, the possibility 
of the rule change encouraging future discrimination in the admissions 
process is speculative and the Department has neither the authority nor 
the expertise to address admissions discrimination.

3. People Mover Gap Standards

    The Department has decided to adopt the NPRM's proposal to allow 
high speed AGT systems to comply with the same train door to platform 
gap standard as other high speed rail systems. The petition was 
submitted by the American Society of Civil Engineers (ASCE). ASCE cited 
the wide variation in AGT system speed--5 to 80 miles per hour--and 
requested that faster AGT systems be subjected to the less stringent 
requirements applied to rapid and light rail systems. ASCE had studied 
existing AGT systems and claimed that most do not meet current AGT 
standards of one inch horizontal and half inch vertical gaps between 
the train door and the platform edge. According to ASCE's analysis, AGT 
systems that run at under 20 miles per hour can reasonably be expected 
to meet the current gap standards. Faster AGT systems, however, require 
vehicles with larger, more complicated suspensions that make it more 
difficult to meet the smaller gap standard.
    The proposal was not controversial. Only one of the 17 comments 
received objected to the principle of a speed division and two objected 
to the proposed 3-inch gap standard for the higher speed trains. The 
proposal would allow AGT systems that operate at over 20 mph at any 
point on the system to comply with the rapid/light rail gap standards 
of a 3 inch horizontal gap and \5/8\ inch vertical gap. One commenter 
suggested that the larger gap only be permitted on sections of the 
track on which the AGT system actually ran at over 20 mph. The 
suggestion is being rejected because it ignores the underlying 
rationale for the speed division. If the AGT vehicle is to be capable 
of traveling at higher speeds on other segments of the system, it will 
require the more sophisticated suspension, which will in turn make the 
smaller gap standard more difficult to meet at all stops.
    ASCE pointed out that the Access Board's preamble discussion refers 
to ``AGT vehicles that travel at slow speed,'' and subsequent Access 
Board manuals suggest that the rapid/light rail gap standard should 
apply to faster AGT vehicles. The Access Board has interpreted its 
guidelines as permitting the construction that ASCE urges and the 
Department's action today will prevent any conflict or confusion 
between the guidelines and the rule.

4. 14-Day Advance Reservations

    The proposal to remove the 14-day advance reservation requirement 
generated significant interest among commenters of all types. While 
approximately 130 commenters advocated keeping the reservation 
requirement, most expressed dissatisfaction with current reservation 
systems, suggested different reservation times, capacity allotments for 
advanced reservations or demonstration projects before a change in the 
requirement is made. Of the approximately 60 commenters who advocated 
repealing the requirement, many made similar recommendations.
    Approximately 45 commenters made 11 different suggestions for 
changing the number of days allowed for advance reservations. Ten of 
these commenters believed that the number of days should be flexible 
and made no specific suggestion, five others suggested a range of 1 to 
3 days, one commenter suggested 3 to 7 days and one suggested 7 to 8 
days. Among the 27 commenters who endorsed a specific number of days, 
there were seven different recommendations, ranging from 1 day to 10 
days, with 7 days being the most popular (13 commenters).
    Eight commenters suggested limiting the percentage of paratransit 
capacity which could be reserved in advance. Most of these eight 
commenters did not offer a specific percentage limit, those who did 
were split between 40 and 50 percent. Three other commenters

[[Page 25413]]

suggested capping the number of trips an individual rider could reserve 
in advance. Similarly, these commenters did not agree on any one 
number.
    The most common complaint about advance reservations was that they 
caused an unmanageable number of cancellations and no-shows. Twenty one 
commenters suggested penalties for riders who failed to show up for 
scheduled rides. Twelve other commenters suggested that this problem 
could be solved by requiring confirmation. Among these twelve comments 
were three different suggestions for when the confirmation should be 
made; there was also disagreement over whether the rider or the transit 
provider should be responsible for making the confirmation call.
    Finally, ten commenters complained that long reservation times 
created prioritization, illegally favoring individuals with certain 
types of disabilities or favoring certain types of trips. Eight 
commenters pointed out that advance reservations drain the capacity of 
paratransit systems, but seven others countered that the real problem 
is limited capacity, which in turn causes reservation problems.
    In light of the substantial dissatisfaction with the current 14-day 
reservation requirement evident from the comments and the abundant and 
varied suggestions for improving reservation systems, the Department 
has decided to remove the requirement and allow local transit 
providers, in conjunction with the riding public, the discretion to 
establish reservation systems that best meet local needs. Under the 
amended rule, transit systems can establish any reservation system that 
meets the other requirements of this part, with a maximum 14-day 
advance reservation period. Paratransit systems that wish to take 
advantage of the flexibility provided by this amendment by changing 
their reservation systems will have to ensure public participation in 
the decision to change and local review of the functioning of the new 
system. The public participation requirements of Sec. 37.137(b) will 
apply.
    One of the points commenters made in favor of retaining some 
advance reservation capacity in paratransit systems was the added 
security it affords concerning occasional, important, time-sensitive 
trips. For example, if someone has airline reservations, the person 
needs to be at the airport at a particular time on a particular day. 
The person is likely to be more comfortable if he or she knows, prior 
to the day before travel, that a paratransit reservation is confirmed. 
While we do not believe that this kind of situation is sufficient, 
given the downsides of an advance reservation requirement, to justify 
mandating advance reservations, we suggest that, as transit providers 
consult with their communities about reservation system changes, that 
they explore means of addressing this concern.
    It should be emphasized that, in order to meet Part 37 
requirements, all paratransit systems must provide at least one-day 
advance reservations at all times. One of the apparent reasons that 
users take advantage of existing advance reservation systems in large 
numbers is their apprehension that, if they wait until the day before 
travel, the capacity of the system to serve them will have been 
exhausted. This can lead, in turn, to the scheduling, no-show, and 
cancellation problems cited in many comments. To make a short-term 
reservation or real-time scheduling system work properly, transit 
providers need to make sure that adequate vehicle and communications 
capacity is available, such that systematic denials of service do not 
exist to an extent that would constitute a capacity constraint (see 
Sec. 37.131(f)(3)((i)(B)).

III. DOT-Proposed Adjustments to the Rule

1. Reduction of Paperwork for Paratransit Plan Updates

    The NPRM proposed that transit authorities that had fully 
implemented the paratransit requirements of the rule would no longer 
have to send in annual updates to FTA. The thinking behind this 
proposal was that, once full compliance had been achieved, annual 
updates, and the process required to generate them, would become an 
unnecessary administrative burden. Instead, there would be a simple 
certification of compliance. If, for any reason, a transit authority 
slipped out of full compliance, it would have to inform FTA and file 
updates until it was once again in full compliance.
    Transit agencies generally supported the proposed change, citing 
the difficulty that many small providers have with annual paperwork 
submissions. Some of these commenters said, however, that there should 
be other means (e.g., additions to the National Transportation 
Database) of monitoring and reporting data on paratransit costs and 
service. Disability community commenters, on the other hand, favored 
retention of the existing requirement. Some were suspicious of claims 
by transit authorities that they were really in full compliance. A 
common theme in these comments was that the public participation 
requirements accompanying the annual update was a good opportunity for 
the disability community to have input concerning service problems. 
Indeed, some commenters said, public participation provisions should be 
strengthened.
    Some of the comments also pointed to a statutory issue. Section 
233(c)(7)(B) of the ADA provides that the Department's regulations 
shall require each public entity that operates fixed route service to 
submit a paratransit plan to the Secretary within 18 months after the 
effective date of the section and ``on an annual basis thereafter, 
submit to the Secretary, and commence implementation of, a plan for 
providing [paratransit] services.'' In its original ADA rule, the 
Department implemented this requirement by establishing the annual plan 
update requirement.
    This requirement makes sense during the phase-in period for 
paratransit service. While a transit authority is gradually building up 
its paratransit service to the point where it meets all service 
criteria, it is reasonable for the transit authority to send in annual 
progress reports that have been developed through the public 
participation process set forth in the rule. Once the transit authority 
has fully met all the service criteria, however, there is no new 
``progress'' to report. There is no implementation to ``commence,'' 
since the service required by the rule is already up and running, and 
need only be continued for the transit authority to meet its ADA 
paratransit obligations.
    Once the transit authority is fully meeting all service criteria 
(including the criterion concerning capacity constraints), submitting 
an annual certification that it is continuing to meet all these 
criteria as provided in its previously-approved plan meets the letter 
and intent of Sec. 223(c)(7)(B). Of course, should the transit 
authority fall below full compliance with all criteria, it would need 
to inform FTA and resume substantive annual updates until it was once 
again in full compliance.
    In response to comments, the Department will make two modifications 
to the proposed regulatory language. First, as noted above, there would 
need to be a report to FTA if the transit authority fell out of 
compliance. Second, we are adding a provision authorizing FTA to direct 
a transit authority to conduct a public participation process and 
submit a plan update if, in FTA's judgment (based, for example, on 
consumer complaints about service), there is a reasonable basis for

[[Page 25414]]

concern about continuing full compliance.
    Because the regulation already requires a mechanism for continuing 
public participation (see Sec. 37.137(c)), the Department is not 
persuaded that the public participation process accompanying plan 
updates is essential to provide public input to providers about 
paratransit service. While changes to National Transit Database 
reporting concerning paratransit are outside the scope of this 
rulemaking, the Federal Transit Administration will consider whether 
some modifications to this report to provide more data about 
paratransit service are desirable.

2. Visitor Eligibility

    The NPRM requested comment on its proposal to clarify the 
eligibility of visitors to use paratransit services. The proposed 
change would have specified that the 21 days that transit operators 
must provide service to eligible visitors was 21 days within a year 
period, as opposed to 21 continuous days. The proposed regulatory text 
would have read: ``A public entity is not required to provide service 
to a visitor for more than 21 days per year from the date of the first 
paratransit trip used by the visitor.'' (emphasis added). The 
Department has decided to clarify the provision by specifying that the 
maximum amount of service which transit providers must provide eligible 
visitors is 21 days per calendar year. The Department will further 
amend the rule to allow local providers the option of restricting the 
21 days of service use to 21 continuous service days following the 
first trip.
    Transit providers were split on whether visitors should be eligible 
for 21 continuous days or 21 days per year. Approximately half of the 
providers who commented complained of administrative difficulties 
inherent in keeping track of 21 days of service spread out over an 
entire year. It was also pointed out that with 21 days per year, 
paratransit operators have more difficulty managing capacity because 
they cannot predict demand. Other providers disagreed, reporting no 
administrative burden or capacity drain from allowing visitors 21 days 
per year. Capital Metro of Austin, Texas believes that 21 continuous 
days of eligibility is insufficient to meet the needs of frequent 
visitors, such as college students returning home on breaks, and 
instead allows visitors six months of service before requiring them to 
apply for local eligibility. Individuals with disabilities and advocacy 
groups almost all favored 21 days per year.
    When an individual with a disability travels to another city, it 
remains the Department's policy that he or she have open and ready 
access to local mass transit without any need to have planned the trip 
in advance. Indeed, often the traveler will be unfamiliar with the new 
city and have no way to know in advance what his or her travel needs 
will be. For this reason, the Department's amendment to this provision 
emphasizes that in no case may a transit provider require a visitor to 
apply for or be granted eligibility certification before being able to 
use the provider's paratransit service as provided in Sec. 37.127.
    Given the desire commenters expressed for clarification of how the 
visitor eligibility provision is intended to work, and the likelihood 
that there may be many situations in which individuals (e.g., business 
travelers, weekend trip visitors) will make repeat trips to a given 
city during a year, the Department has decided to require that transit 
authorities permit a visitor to use the service on any combination of 
21 days throughout a 365-day period. For example, if Ms. Smith first 
uses the service on April 1, she could use the service on April 2-6, 
May 17, July 10-15, October 7, etc. until she had used the service on 
21 days in the period extending through March 31 of the next calendar 
year. The way that XYZ chooses to implement visitor eligibility should 
be made part of its paratransit program and visitors should be provided 
materials clearly explaining how XYZ's visitor policy works.

3. Vehicle Acquisition for ``Private Not Primarily Engaged'' Providers

    Section 37.101 contains the vehicle acquisition requirements for 
private entities not primarily engaged in the business of transporting 
people. Paragraph (d) of the section applies to private entities which 
operate demand responsive systems which purchase vehicles with seating 
capacity over 16. When these entities purchase such a vehicle, it must 
be accessible to individuals who use wheelchairs, unless the entity can 
show that when viewed in its entirety, its system provides equivalent 
service to individuals with disabilities. The standard for equivalent 
service is found in Sec. 37.105, to which paragraph (d) refers the 
reader.
    Neither Sec. 37.101 nor the ADA has any vehicle acquisition 
requirement for private entities not primarily engaged in transporting 
people which operate demand responsive systems which purchase vehicles 
with seating capacity of 16 or less. This has created the mistaken 
impression that there are no service standards which apply to these 
systems. The ADA does require private operators of demand responsive 
systems to provide equivalent service to individuals with disabilities 
regardless of whether or not they purchase any new vehicles. This 
requirement is contained in Section 302(b)(2)(C) of the ADA and is 
reflected in the Department's regulations in Sec. 37.171. Section 
37.171 applies the same standard for overall equivalent service as is 
found in Sec. 37.105.
    To eliminate the confusion which has resulted from these 
requirements, this final rule adds a new paragraph to Sec. 37.101 which 
explicitly states that private entities operating demand responsive 
systems that purchase vehicles with capacity of 16 or fewer must 
provide equivalent service to individuals with disabilities. The new 
paragraph refers the reader to both the requirement stated in 
Sec. 37.171 and the standard articulated in Sec. 37.105.

4. Personal Care Attendants

    The NPRM requested comments on the question of how to define a 
personal care attendant (PCA), and whether further definition was 
necessary, for the purposes of determining eligibility to ride 
paratransit free while accompanying a paratransit eligible individual. 
Half of all comments received on the NPRM addressed this issue. 
Individuals with disabilities and advocacy groups were overwhelmingly 
opposed to any attempt to further define a PCA, often expressing the 
opinion that further definition would constitute an invasion of 
privacy.
    Transit authorities were divided on the question, with eight 
believing that there was no problem and no further action warranted, 
and more than a dozen believing that something should be done. Three 
transit authorities suggested registering the PCAs themselves, and 
three more believed that only PCAs needed for the trip should qualify, 
not those whose services were required at the destination. Several 
commenters suggested that individuals who needed PCAs should register 
that need as part of the application process--something that the 
Appendix already allows paratransit providers to require. Three of the 
transit authorities that supported requiring riders to register the 
need for a PCA went further to suggest that individuals who have 
registered a need for a PCA be denied service when riding alone.
    The Department has decided not to amend the regulatory text 
regarding PCAs. We wish to reemphasize, however, that the existing 
definition of

[[Page 25415]]

a PCA does not distinguish between PCAs whose services are required 
during the paratransit ride and those required at the destination. 
Limiting riders to PCAs who were required on the paratransit trip could 
leave a rider unable to function at his or her destination, thereby 
making the trip meaningless.
    Finally, several commenters suggested requiring those who register 
as using a PCA be denied service when riding alone. The Department did 
not adopt this suggestion. Riders who use a PCA for destination needs 
may well have varying needs depending on the trip purposes. Requiring 
these riders to be accompanied by a PCA even when they do not expect to 
require assistance will create unnecessary expenses for the rider and 
further burden the seating capacity of the transit provider. Other 
riders may have varying levels of assistance needs over time, and 
requiring these riders to either further define their needs in advance 
or always travel with a PCA is unjustifiably intrusive.

5. Equivalent Facilitation

    The final substantive change proposed in the NPRM was to delete the 
requirement that an entity demonstrate an inability to comply with 
existing requirements as a condition of obtaining a determination of 
equivalent facilitation. As explained in the NPRM, the original purpose 
of the provision was to limit departures from established regulatory 
standards and promote uniformity and predictability. The Department was 
concerned, however, that requiring a showing of inability to comply was 
having the effect of stifling innovation and discouraging the 
development of new technologies that might provide equal or even 
greater accessibility at a lower cost.
    The discussion of this change that appeared in the preamble of the 
NPRM addressed only whether a petitioning entity should have to 
demonstrate its inability to comply. A drafting error in the proposed 
regulatory text created the impression that the amendment would have 
gone further, eliminating other reporting requirements associated with 
the petition for equivalent facilitation. The Department apologizes for 
the error and wishes to note that at no time were the other 
requirements considered for removal.
    Commenters were split on this proposal. All commenting transit 
authorities and providers agreed with the proposal, as did a few other 
commenters. Many of these commenters clearly conditioned their support 
on the Department ensuring that the change did not allow any decrease 
in accessibility. Members of the disability community voiced strong 
dissent to the proposal. Almost all of the comments filed by 
individuals with disabilities and their advocacy groups viewed the 
change as a weakening of the ADA's accessibility standards and many 
expressed distrust of the Department's ability to ensure legitimate 
equivalence.
    Recognizing that significant costs can be associated with ADA 
compliance, the Department feels that to ensure the most widespread 
long-term compliance, it must allow as much flexibility as possible and 
encourage the development of new, more cost effective technologies. 
Accordingly, the requirement that an entity show that it is unable to 
comply with current standards is being eliminated from the petition for 
equivalent facilitation. Petitioning entities must continue to show 
that their alternative method actually provides equal or greater 
accessibility. This point protects the interests of the disability 
community concerning maintaining the strength of accessibility 
requirements. The other reporting requirements of the petition found in 
Sec. 37.7 and Sec. 37.9 will also remain, such as demonstrating the 
effectiveness of the alternative measures for compliance and 
documenting the public participation used in developing the alternative 
method. The Department notes that the original purpose of the 
requirement, encouraging uniformity and predictability, remains an 
important goal.

6. Clarification of Appendix Statement on Vehicle Lift Dimensions

    The NPRM proposed to clarify a reference to the Part 38 standards 
for accessible vehicles. Appendix D to Part 37 contains explanatory 
statements and guidelines for Part 37. In Appendix D, section 37.13, 
the discussion of section 37.13 of the rule refers to the ``new 30'' by 
48'' lift platform specifications.'' This statement was intended to 
refer to the Part 38 standards for lift platforms. The reference 
oversimplifies the Part 38 standard, which requires 30  x  48 inch 
dimensions at a height of 2 inches above the platform base, but only 
requires a width of 28.5 inches at the base itself. To eliminate the 
confusion created by the reference, section 37.13 of Part 37, Appendix 
D will be amended to replace the words ``new 30'' by 48'' '' with the 
words ``Part 38''.

7. Typographical Errors

    The typographical errors in Secs. 37.3 and 37.11(a) will be 
corrected as described in the NPRM.

Regulatory Analyses and Notices

    This final rule is not significant under Executive Order 12866. It 
is significant under the Department's Regulatory Policies and 
procedures, because it amends a significant rule having substantial 
public interest. We expect economic impacts to be minimal, so we have 
not prepared a regulatory evaluation. There are no Federalism impacts 
sufficient to warrant the preparation of a Federalism assessment. The 
Department certifies that the rule will not have a significant economic 
impact on a substantial number of small entities.

    Issued this 7th day of March, 1996, at Washington, DC.
Federico Pena,
Secretary of Transportation.

    For the reasons set forth in the preamble, the Department proposes 
to amend 49 CFR Part 37 and 49 CFR Part 38 as follows:

PART 37--[AMENDED]

    1. The authority citation for 49 CFR Part 37 is proposed to 
continue to read as follows:

    Authority: Americans with Disabilities Act of 1990 (42 U.S.C. 
12101-12213); 49 U.S.C. 322.

    2. The authority citation for 49 CFR Part 38 is proposed to be 
revised to read as follows:

    Authority: Americans with Disabilities Act of 1990 (42 U.S.C. 
12101-12213); 49 U.S.C. 322.

    3. In part 37, Sec. 37.27(b) is proposed to be revised to read as 
follows:


Sec. 37. 27  Transportation for elementary and secondary education 
systems.

* * * * *
    (b) The requirements of this part do not apply to the 
transportation of school children to and from a private elementary or 
secondary school, and its school-related activities, if the school is 
providing transportation service to students with disabilities 
equivalent to that provided to students without disabilities. The test 
of equivalence is the same as that provided in Sec. 37.105. If the 
school does not meet the requirement of this paragraph for exemption 
from the requirements of this part, it is subject to the requirements 
of this part for private entities not primarily engaged in transporting 
people.


Sec. 37.3  [Amended]

    4. In part 37, Sec. 37.3 the definition of the term ``Designated 
public transportation'' is amended by replacing

[[Page 25416]]

the word ``containing'' with the word ``continuing.''
    5. In Part 37, Sec. 37.7 is amended by revising paragraph 
(b)(2)(ii) and removing and reserving (b)(2)(iii) to read as follows:


Sec. 37.7  Standards for accessible vehicles.

* * * * *
    (b) * * *
    (2) * * *
    (ii) Specific provision of part 38 of this title concerning which 
the entity is seeking a determination of equivalent facilitation.
* * * * *
    6. In Part 37, Sec. 37.9 is amended by revising paragraph 
(d)(2)(ii) to read as follows and removing and reserving (d)(2)(iii):


Sec. 37.9  Standards for accessible facilities.

* * * * *
    (d) * * *
    (2) * * *
    (ii) Specific provision of Appendix A to Part 37 concerning which 
the entity is seeking a determination of equivalent facilitation.
* * * * *


Sec. 37.11  [Amended]

    7. In part 37, Sec. 37.11(a) is amended by replacing the words 
``subpart F'' with the words ``subpart C.''
    8. In Part 37, Sec. 37.101 is amended by adding a new paragraph 
(e), to read as follows:


Sec. 37.101  Purchase or lease of vehicles by private entities not 
primarily engaged in the business of transporting people.

* * * * *
    (e) Demand Responsive System, Vehicle Capacity of 16 or Fewer. 
Entities providing demand responsive transportation covered under this 
section are not specifically required to ensure that new vehicles with 
seating capacity of 16 or fewer are accessible to individuals with 
wheelchairs. These entities are required to ensure that their systems, 
when viewed in their entirety, meet the equivalent service requirements 
of Secs. 37.171 and 37.105, regardless of whether or not the entities 
purchase a new vehicle.
    9. In Part 37, Sec. 37.127(e) is revised to read as follows:


Sec. 37.127  Complementary paratransit service for visitors.

* * * * *
    (e) A public entity shall make the service to a visitor required by 
this section available for any combination of 21 days during any 365-
day period beginning with the visitor's first use of the service during 
such 365-day period. In no case shall the public entity require a 
visitor to apply for or receive eligibility certification from the 
public entity before receiving the service required by this section.
    10. In part 37, Sec. 37.131(b)(4) is revised to read as follows:


Sec. 37.131  Service criteria for complementary paratransit.

* * * * *
    (b)* * *
* * * * *
    (4) The entity may permit advance reservations to be made up to 14 
days in advance of an ADA paratransit eligible individual's desired 
trips. When an entity proposes to change its reservations system, it 
shall comply with the public participation requirements equivalent to 
those of Sec. 37.131(b) and (c).
* * * * *
    11. In Part 37, Sec. 37.135 is amended by revising paragraph (c) to 
read as follows:


Sec. 37.135  Submission of paratransit plan.

* * * * *
    (c) Annual Updates. Except as provided in this paragraph, each 
entity shall submit an annual update to its plan on January 26 of each 
succeeding year.
    (1) If an entity has met and is continuing to meet all requirements 
for complementary paratransit in Secs. 37.121-37.133 of this part, the 
entity may submit to FTA an annual certification of continued 
compliance in lieu of a plan update. Entities that have submitted a 
joint plan under Sec. 37.141 may submit a joint certification under 
this paragraph. The requirements of Secs. 37.137-37.139 do not apply 
when a certification is submitted under this paragraph.
    (2) In the event of any change in circumstances that results in an 
entity which has submitted a certification of continued compliance 
falling short of compliance with Secs. 37.121-37.133, the entity shall 
immediately notify FTA in writing of the problem. In this case, the 
entity shall also file a plan update meeting the requirements of 
Secs. 37.137-37.139 of this part on the next following January 26 and 
in each succeeding year until the entity returns to full compliance.
    (3) An entity that has demonstrated undue financial burden to the 
FTA shall file a plan update meeting the requirements of Secs. 37.137-
37.139 of this part on each January 26 until full compliance with 
Secs. 37.121-37.133 is attained.
    (4) If FTA reasonably believes that an entity may not be fully 
complying with all service criteria, FTA may require the entity to 
provide an annual update to its plan.

Appendix D [Amended]

    12. In Part 37, Appendix D, the paragraph entitled ``Section 37.13 
Effective Date for Certain Vehicle Lift Specifications'' is proposed to 
be amended by replacing the words ``new 30'' by 48'''' with the words 
``Part 38.''


Sec. 38.173  [Amended]

    13. In part 38, Sec. 38.173(a) is amended by adding the words 
``(i.e., at a speed of no more than 20 miles per hour at any location 
on their route during normal operation)'' after the words ``slow 
speed.''
    14. In part 38, Sec. 38.173(d) is amended by adding the following 
sentence at the end thereof, to read as follows:


Sec. 38.173  Automated guideway transit vehicles and systems.

* * * * *
    (d) * * * AGT systems whose vehicles travel at a speed of more than 
20 miles per hour at any location on their route during normal 
operation are covered under this paragraph rather than under paragraph 
(a) of this section.

[FR Doc. 96-11935 Filed 5-20-96; 8:45 am]
BILLING CODE 4910-62-P